Opinion
No. 4211.
June 29, 1973. On Rehearing September 18, 1973. Rehearing Denied November 2, 1973.
APPEAL FROM FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION, STATE OF LOUISIANA, HONORABLE DOUGLAS J. NEHRBASS, J.
Richard J. Putnam, Jr. of Hagood Putnam, Abbeville, for defendant-appellant.
Frank W. Summers, II, Abbeville, for plaintiff-appellee.
Before SAVOY, HOOD and CULPEPPER, JJ.
Anna Lee Vincent filed this suit against her former husband, David Franklin Lewis, Jr., for alimony for the support of herself and five minor children. Judgment by default was rendered awarding plaintiff alimony in the sum of $200 per month "for herself and for the care of her children." The defendant appealed.
The issue on appeal is whether plaintiff's failure to allege or prove freedom from fault precludes her right to alimony for her personal support under LSA-C.C. Article 160 which reads in pertinent part as follows:
"When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
"1. The wife obtains a divorce;"
The facts are that on December 17, 1970 the plaintiff wife obtained a divorce on the grounds of two years voluntary separation. The judgment of divorce awarded custody of the minor children to the plaintiff but made no provision for the payment of alimony.
On October 20, 1973, plaintiff filed the present proceedings for alimony for the support of herself and the five minor children. Evidence introduced at the hearing for confirmation of default shows the monthly expenses for plaintiff and her children total $293.60. Her income consists of $39 per month from the Welfare Department and $60 per month which the defendant husband was ordered to pay in a criminal proceedings in the Abbeville City Court. The defendant husband's wages are over $500 per month. On this showing, a judgment was rendered awarding plaintiff alimony in the sum of $200 per month for the support of herself and the minor children. The judgment does not specify how much is for the support of plaintiff personally and how much is for the children.
On appeal, the defendant husband contends that since the plaintiff wife failed to allege or prove freedom from fault she has no right to alimony for her personal support. He requests these proceedings be remanded to the district court for a determination of the portion of the $200 which was intended for child support, and that the alimony be reduced to that amount.
Our law is now clear that under LSA-C. C. Article 160 the wife who seeks alimony for her personal support after divorce has the burden of proving that she was without fault, Davidson v. Jenkins, 216 So.2d 682 (La.App. 3rd Cir. 1968) and the authorities cited therein. See also Comment (c) of the Louisiana State Law Institute explaining that a purpose of the 1964 amendment to LSA-C.C. Article 160 was to make this rule clear. Under this rule, the plaintiff wife in the present case had the burden to allege and prove freedom from fault. This issue has never been adjudicated. Accordingly, the judgment appealed must be reversed, and this case remanded to determine the amount of alimony which should be awarded for the children. The wife's claim for alimony for her personal support will be nonsuited without prejudice to her right to allege and prove freedom from fault in further proceedings.
It may be that even $200 per month is insufficient for the support of plaintiff's five minor children, and that the reason the district judge limited the award to $200 is that he felt this was the maximum amount which the defendant husband could pay. On remand, the district judge will have the discretion to fix any amount which in his discretion he finds proper for the support of the children.
For the reasons assigned, the judgment appealed is reversed and set aside, the claim of the wife for alimony for her personal support is nonsuited, and this case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the plaintiff appellee. Assessment of costs in the district court will await a final judgment there.
Reversed and remanded.
ON REHEARING
We granted a rehearing, limited to the question of whether the appeal was timely perfected.
The issue is whether an appeal is timely perfected, where the order for the appeal is signed within the delay for taking the appeal, the required bond is not posted within the delay, but after the delay expires, the appellant secures an amendment to the order for appeal dispensing with the bond and allowing the appeal to be taken in forma pauperis.
The relevant facts are that a judgment awarding alimony to the plaintiff wife was rendered on January 2, 1973. No application for a new trial was filed. On February 5, 1973 the district judge signed an order granting a devolutive appeal, conditioned upon the defendant furnishing bond in the sum of $250. That was the last day of the 30-day delay for taking a devolutive appeal from an alimony judgment, LSA-C.C.P. Articles 3943, 3942 and 2087. No bond was posted. Instead, on February 20, 1973, which was after the 30-day delay expired, the district judge signed an order amending the prior order for appeal, so as to dispense with the bond and allow defendant to take the appeal in forma pauperis.
Our jurisprudence is established that the failure to perfect an appeal by timely filing the appeal bond is jurisdictional, and the appellate court does not acquire jurisdiction of an appeal unless the bond is filed within the time prescribed by law, Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and the cases cited.
Defendant cites no cases which support his contention. The rationale of our jurisprudence indicates that such an attempt to extend the delay for perfecting an appeal is not permitted. In addition to the jurisprudential rule stated above, there are cases which hold that an attempt to extend the statutory delay for appealing will be held invalid, Succession of DeHart, 272 So.2d 781 (3rd Cir. 1973). Also, the time limit for taking an appeal cannot be extended, even by agreement of the parties, David v. Department of Public Safety, 261 So.2d 347 (1st Cir. 1972).
We think the rationale of this jurisprudence is sound. To hold otherwise would cause indefiniteness in the delays for taking appeals.
We conclude the appeal was not timely perfected and that this court lacks jurisdiction of the appeal. We may, on our own motion, dismiss the appeal, Siracusa v. Kramer, 271 So.2d 546 (1st Cir. 1972).
For the reasons assigned, our original decision is recalled and set aside. Defendant's appeal is dismissed at his cost.
On rehearing, original decision recalled and appeal dismissed.